Himachal Pradesh High Court
Mehboob vs State Of Himachal Pradesh on 18 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr.MP(M) No.1362/2019
Date of decision : 18.07.2019
Mehboob
... Petitioner.
Versus
State of Himachal Pradesh
...Respondent
Coram: r
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Divya Raj Singh, Advocate.
For the Respondent : Mr. Kunal Thakur, Deputy Advocate
General, for the State.
Anoop Chitkara, Judge (oral)
The present petition is under Section 439 of the Code of Criminal Procedure, seeking anticipatory bail in FIR No. 105 of 2019 dated 02.04.2019 registered at Police Station Sadar, District Chamba, H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (from now on referred to as the Act).
1Whether reporters of Local Papers may be allowed to see the judgment?
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2. The case of the petitioner is that the police has arraigned .
him as an accused in F.I.R. No. 105 of 2019 registered against him under Section 20 of the NDPS Act at Police Station Sadar, District Chamba. Learned counsel appearing for the bail petitioner contends that the petitioner is an old person of about 52 years and has a family to maintain, being the sole bread earner. It is further contended that the petitioner has falsely been roped into the case, whereas he has nothing to do with the said contraband.
3. The quantity of Charas, which the Police seized, is 1Kg and 100 grams. The Notification, issued under Section 2(vii) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances, mentions Charas at Sr. No. 23. If the weight of Charas is greater than 1 kilogram than it shall fall in the commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall apply in the present case. Resultantly, the present case is not at par with any other instance of the grant of bail in a penal offence.
4. I have heard Mr. Kunal Thakur, learned Deputy Additional Advocate General, for the State. He has vehemently opposed the petition for grant of bail to the accused.
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5. This Court can release a person/accused for committing .
an offence punishable under the NDPS Act to possess commercial quantity of contraband, only on clearance of the rigors contained in Section 37 of the Act. Section 37 of the Act is extracted as under:-
"37. Offences to be cognizable and non-bailable.
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."::: Downloaded on - 29/09/2019 00:56:20 :::HCHP
...4...
6. Reading of Section 37(1)(b)(ii) mandates that two conditions .
are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail.
(i) The first condition is when the Public Prosecutor does not oppose the bail application.
(ii) The second stipulation is that the Court must be satisfied that the reasonable grounds exist for believing that the accused is not guilty of such offence and also he is not likely to commit any offence while on bail. Be that it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions that the reasonable ground to believe that during the period of bail, the accused is not guilty of such an offence, still, it is not possible for the Court to give a finding or assurance that the accused is not likely to commit any such crime.
However, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case.
7. In the present case, there is not even a whisper or a word in the pleadings of the accused which suggest that the petitioner was not present on the spot at the time of the alleged recovery of the contraband. It is also not pleaded that there is some hostility with the ::: Downloaded on - 29/09/2019 00:56:20 :::HCHP ...5...
police personnel. The only contention raised is that the police has .
falsely implicated the accused.
8. The Supreme Court, in the following judgment, has declared Section 37 NDPS as mandatory:
a) In Union of India v. Niyazuddin & Anr, 2018 (13) SCC 738, Supreme Court holds:
"6. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section.
They are:- (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. The accusation in the present case is with regard to the fourth factor namely, commercial quantity.
7. ...Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of ::: Downloaded on - 29/09/2019 00:56:20 :::HCHP ...6...
such offence; (2) that person is not likely to commit any offence while on bail."
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9. In the facts and circumstances of the case, the petitioner is unable to clear the check-post of Section 37 of the NDPS Act.
Resultantly, the petition under Section 439 Cr.P.C, stands dismissed.
10. The dismissal of the present bail petition shall not stand in the way of the petitioner filing any subsequent bail petition on same or similar grounds either before Special Judge or in this Court.
Any observation made in this order shall not be taken as an expression of opinion on the merits of the case, either during the trial or while filing subsequent bail(s), and the Court(s) shall decide the matter uninfluenced by any observation made hereinabove.
(Anoop Chitkara), Judge.
18th July, 2019 (KS) ::: Downloaded on - 29/09/2019 00:56:20 :::HCHP